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United States v. Leon-Alvarez

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Submitted: January 16, 2008

Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.

Gregorio Leon-Alvarez pleaded guilty, pursuant to a plea agreement, to conspiracy to distribute 50 grams or more of methamphetamine mixture*fn1 and to misusing employment eligibility verification.*fn2 As part of the plea agreement, the government dismissed eight other narcotics counts. At sentencing, Leon-Alvarez faced a mandatory minimum sentence of 60 months’ imprisonment because of his prior convictions. The district court found that the Guidelines criminal history calculation was advisory and assessed Leon-Alvarez only one criminal history point despite his having two convictions. With only one criminal history point, Leon-Alvarez was eligible for safety-valve relief. The district court excluded one conviction and imposed a sentence of 37 months’ imprisonment and 4 years of supervised release. The government appeals the district court’s calculation of Leon-Alvarez’s criminal history, arguing that such calculations are not discretionary. We reverse and remand for resentencing.

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